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2008 DIGILAW 1642 (BOM)

Nelson D costa v. N. M. Langrana

2008-11-24

A.P.LAVANDE

body2008
JUDGMENT:- By this appeal the appellant takes exception to the judgment and order of acquittal dated 16.05.2007 passed by the Judicial Magistrate. First Class, Margao in Criminal Case No.212/0A/NI/2003/II acquitting the respondent for the offence under section 138 of the Negotiable Instruments Act. 2. The appellant is the complainant and the respondent is the accused in the above case. They shall be hereinafter referred to as per their status in the criminal case. 3. Briefly the background facts leading to the tiling of the appeal are as under: 4. The complainant is a businessman dealing in aerated waters having office at Braganza Mansion. Campo, Chandor, Salcete. Goa. He paid a sum of Rs.6,00,000/- to the accused for the purpose of purchasing machinery. The accused failed to deliver the machinery and in lieu of the same issued cheques to the complainant. One cheque was presented for payment which was returned with an endorsement 'funds insufficient'. Thereafter the complainant sent a registered A.D. notice demanding payment of the cheque amount. In view of failure to pay the amount the complainant filed the above referred criminal case. 5. The complainant examined himself as D.W.l. The accused examined herself in her defence and examined her husband Shri. Noshir Manecksahwa Langrana as D.W.2, Sitaram Patil as D.W.3 and Raghunath Sinari as D.W.4. The learned Magistrate vide the impugned judgment acquitted the accused on the ground that the cheque in question was not issued to the complainant in discharge of legally enforceable debt. In so far as the other predicates of Section 138 of the Act are concerned, the learned Magistrate recorded the finding in the affirmative. 6. The learned Magistrate held that the complainant had not disclosed true facts in the complaint. The complainant for the first time, in the cross-examination mentioned above the transaction regarding supply of machinery to him by the accused and her husband. The transaction to supply machinery was with both as they were having a firm under the name and style of Ahura Engineering Works and according to his information it was a partnership firm but he did not check the documents of the firm. The complainant further stated that at the relevant time the accused was doing business and he also came to know that she was working for a bank. He further stated that the accused and her husband were introduced to him by Mr. Garware. The complainant further stated that at the relevant time the accused was doing business and he also came to know that she was working for a bank. He further stated that the accused and her husband were introduced to him by Mr. Garware. The learned Magistrate held that the evidence that the complainant did not establish that the accused had any connection with Ahura Engineering Works. The learned Magistrate relied upon the evidence of the accused in which he clearly stated that she had no business dealing with the accused and that she was not a partner in Ahura Engineering Works. The complainant admitted that there was no agreement between the accused and her husband or by the accused to supply machinery to the complainant. The accused in her evidence stated that she had kept blank cheque with signature from the joint account since her husband or her children might need the cheque. She categorically stated that the cheque was from the joint account and she had not issued the cheque in respect of any business transaction with the complainant. The accused stated that Ahura Engineering Works was a registered proprietary firm. 7. Shri. Noshir Langrana who has been examined as D.W.2 claimed that the accused was his wife and she was working i~ Bank of Baroda from 01.08.1966 till the time she took voluntary retirement on 31.03.2001. He stated that she had issued the cheque as security and the complainant had agreed to return the machinery to him. According to him, the machinery was delivered to the complainant on 30.12.1996 at Chandor, Salcete, Goa. He further stated that after delivery of the machinery there were some differences between him and the complainant and therefore, he agreed to purchase the said machinery which he would self and pay the money to the complainant. He fUl1her stated that he had issued the cheque signed by his wife without telling her or in forming her. In the cross-examination, he denied that his statement that the machinery was delivered was false. D.W.3/Sitaram Patil was examined who was working with D.W.2/ Noshir Langrana to prove that Ahura Engineering Works was a proprietory concern and that the accused had no connection with in the business of her husband. He deposed about the delivery of the machinery at Chandor. In the cross-examination he denied that he had not come with the machinery to Goa. D.W.3/Sitaram Patil was examined who was working with D.W.2/ Noshir Langrana to prove that Ahura Engineering Works was a proprietory concern and that the accused had no connection with in the business of her husband. He deposed about the delivery of the machinery at Chandor. In the cross-examination he denied that he had not come with the machinery to Goa. D.WA/ Raghunath Sinari who was working with D.W.2 was examined to prove the delivery of the machinery to the complainant on 30.12.1996. In the cross-examination he also denied that the machinery was not loaded in the lorry for sending it to Goa. 8. As stated above, the learned Magistrate has acquitted the accused primarily on the ground that the complainant was not able to establish that he had any business transaction with the accused and as such, learned Magistrate held that the cheque was not issued in discharge of legally enforceable debt. 9. Mr. Sardessai, learned counsel for the appellant/complainant submitted that the findings recorded by the learned Magistrate while acquitting the accused are perverse. He further submitted that admittedly the cheque was issued by the accused and the same bounced on account of 'insufficient funds'. He further submitted that the accused has not rebutted the presumption under Section 139 of the Act. He further submitted that the accused does not say as to what was the transaction between the complainant and the accused. Moreover, false defence was taken that the cheque was given by her husband by way of security. According to the learned counseL there is absolutely no evidence regarding delivery of the machinery and the challan to prove the delivery has not been produced. He further submitted that even if the delivery is proved. it has not been proved that the same was in respect of the transaction in respect of which the present cheque in question was issued. He further submitted that the accused has not produced any document to prove that Ahura Engineering Works is a proprietary concern, which burden was on the accused. Lastly the learned counsel submitted that the learned Magistrate has not appreciated the entire prosecution case in correct perspective and therefore, the impugned order is liable to be quashed and set aside. 10. Per contra, Mrs. Lastly the learned counsel submitted that the learned Magistrate has not appreciated the entire prosecution case in correct perspective and therefore, the impugned order is liable to be quashed and set aside. 10. Per contra, Mrs. Agni learned counsel for the respondent submitted that the accused has rebutted presumption under Section 139 of the Act, on the basis of the cross examination of the complainant and by leading cogent defence evidence. According to the learned counsel, the evidence of the complainant is not in consonance with the complaint and there is a complete shift in the stand taken by the complainant. Learned counsel further submitted that the evidence on record clearly establishes that there was no business transaction between the accused and the complainant and therefore, the learned Magistrate has rightly acquitted the accused. In any event, the learned counsel submitted that the findings given by the learned Magistrate are not perverse and therefore, no interference is called for with the impugned order. The learned counsel further submitted that the presumption under section 139 of the Act can be rebutted by preponderance of probabilities. In support of this submission, she has relied upon the judgment of the Apex COUl1 in M.S. Narayana Menon alias Mani Vs. State of Kerala and anr. reported in (2006)6 Supreme Court Cases 39 : [2006(5) ALL MR (S.c.) 33]. Learned counsel has further submitted that the view taken by the learned Magistrate is a possible view and therefore. this Court should not interfere in appeal against acquittal. In support of this submission, she has relied upon the judgment of the Apex Court in Kamala S. Vs. Vidhyadharan M.J. And anr. reported in (2007)5 Supreme Court Cases 264: [2007 ALL SCR 1448]. 11. I have considered the submissions made by the learned counsel for the parties, perused the record and the judgments relied upon. 12. The question which arises for consideration is whether the findings recorded by the learned Magistrate while acquitting the accused are perverse? 13. As stated above, the learned Magistrate upon appreciation of the evidence led by the complainant and the accused held that the complainant has not been able to prove that he had business transactions with the accused. It is their consistent evidence of the accused that Ahura Engineering Works was a proprietory concern of the husband of the accused and the accused was in no way connected with the business. It is their consistent evidence of the accused that Ahura Engineering Works was a proprietory concern of the husband of the accused and the accused was in no way connected with the business. This has been consistently deposed to by the accused and the three witnesses examined by her in her defence. The complainant has not produced any document to prove that the accused was in any way connected with the business of the Ahura Engineering Works. I am unable to accept the submission of Mr. Sardessai that since the complainant did not produce any documentary evidence in support of the fact that Ahura Engineering Works is a proprietorship concern, adverse inference has to be drawn against it. If Ahura Engineering Works was not a proprietory concern but was a partnership firm. the accused was surely in a position to produce the documents about registration of the firm, Merely because the complainant has not produced documents to prove that Ahura Engineering Works was a proprietory concern of her husband, no adverse inference can be drawn against her. Admittedly. all the four witnesses examined on behalf of the accused have categorically stated that the accused had no connection with the business carried out by her husband in the name and style of Ahura Engineering Works. There is no evidence to disbelieve this part of the evidence coming from the witnesses. Moreover, the evidence on record clearly establishes that the accused was serving in the bank from 01.10.1986 to 31.03.2001 in Bank of Baroda. There is absolutely no material produced by the complainant on record as to when the order to supply the machinery was placed by the complainant. This was an important fact which the complainant was expected to depose, in view of the fact that till 31.03.2001, the accused was working in the bank and as such, was not expected to be a partner in business. Even otherwise, the complainant in his evidence does not say as to when he had placed the order for machinery, and when the accused failed to deliver the machinery. In view of this position, the finding recorded by the learned Magistrate that the complainant was not able to prove that the cheque was issued in discharge of legally enforceable debt or liability cannot be said to be perverse warranting interference: 14. In view of this position, the finding recorded by the learned Magistrate that the complainant was not able to prove that the cheque was issued in discharge of legally enforceable debt or liability cannot be said to be perverse warranting interference: 14. In so far as the evidence led by the accused regarding delivery of the machinery'. it is not necessary to give any finding in view of the fact that I have upheld the finding recorded by the Trial Court that the cheque was not issued by the accused in discharge of any debt or liability. 15. Mrs. Agni is justified in relying upon the judgment of the Apex Court in M.S. Narayana Menon's case [2006(5) ALL MR (S.c.) 33] (Supra). In paragraphs 32 and 33, the Apex Court has observed thus: "32. The standard of proof evidently is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials on record but also by reference to the circumstances upon which he relies. 33. Presumption drawn under a statute has only an evidentiary value. Presumptions are raised in terms of the Evidence Act. Presumption drawn in respect of one fact may be an evidence even for the purpose of drawing presumption under another." 16. The learned counsel is also justified in relying upon the case of Kamala S. [2007 ALL SCR 1448] (supra) in which the Apex Court has held that when two views are possible, the High Court while exercising its appellate power against a judgment of acquittal, shall not ordinarily interfere therewith. 17. In view of the above legal position, and upon re-appreciation of the evidence. I am of the opinion that the impugned order cannot be termed as perverse, warranting interference in the appeal against acquittal. I find that the complainant has not made out any case to warrant interference. Hence the appeal is dismissed. There shall be no order as to costs. 18. For the reasons aforesaid, the appeal is dismissed. Bail bond executed by the respondent is discharged.